1938. Assessment of damages. 22 G. A., ch. 32, § 2. Whenever any such viaduct shall be deemed and declared by ordinances necessary for the safety and protection of the public, the council shall provide for appraising, assessing and determining the damages, if any, which may be caused to any property, by reason of the construction of such viaduct and its approaches. The proceedings for such purpose shall be the same as provided by law for taking possession of streets by railroad companies, except that the damages assessed shall be paid by the city.

1939. Specifications. 22 G. A., ch. 32, § 3. The width, heighth and strength of any such viaduct, and the approaches thereto, the material therefor, and the manner of construction thereof shall be such as may be required by the board of public works and approved by the mayor and council, but if there be no board of public works, then they shall be such as may be required by the council.

1940. Apportionment of cost; repairs. 22 G. A., ch. 32, § 4. When two or more railroad companies own or operate separate lines of track to be crossed by any such viaduct, the proportion thereof, and of the approaches thereto, to be constructed by each, or of the cost to be borne by each shall be determined by the council. After the completion of any such viaduct, any revenue derived therefrom by the crossing thereon of street railway lines, or otherwise, shall constitute a special fund, and shall be applied in making repairs to such viaduct. One-half of all ordinary repairs to such viaduct, or to the approaches thereto, shall be paid out of such fund, or shall be borne by the city, and the remaining half shall be borne by the railroad company or companies and if the track of more than one company is so crossed the said one-half of such repairs shall be borne by such companies in the same proportion as the original construction of such viaduct.

1941. Indemnity bond. 22 G. A., ch. 32, § 5. Every city to which this act applies is authorized and empowered to receive a bond of indemnity from persons interested in the construction of any such viaduct conditioned for the payment of all the damages which may be assessed in favor of abutting property owners together with costs.

1942. Refusal to comply. 22 G. A., ch. 32, § 6. If any railroad company neglects or refuses for more than thirty days after such notice as may be prescribed by ordinance, to comply with the requirements of any ordinance passed under the provisions hereof, the city may construct or repair the viaduct or approach which such ordinance may require such railroad company to construct or maintain, and recover the cost of such construction or maintenance from such railroad company in any court of competent jurisdiction.

PUBLIC WAYS TO MINES AND QUARRIES.

1949. By quarry or mine owners. 15 G. A, ch. 34, § 1. Any person, copartnership, joint-stock association, or corporation, owning, leasing, or possessing any lands having thereon or thereunder any coal, stone, lead, or other mineral, may have established over the land of another a public way from any stone-quarry, coal, lead or other mine, to any railway or highway, not exceeding (except by the consent of the owner of the land to be taken) fifty feet in width. When said road shall be constructed, it shall, when

passing through inclosed lands, be fenced on both sides by the person or corporations causing said road to be established.

No authority is given by this act to construct a private way. The waywhen condemned, is to be a public one, and the act is therefore not invalid. Jones v. Mahaska, etc., Coal Co., 47-35.

A road or way established under the provisions of this statute is a public way, in the sense that the public may use and enjoy it in the manner in which roads and highways are ordinarily used by it, and the mine owner who procured it to be established must use the special privilege which the act confers on him in such a way as not to destroy this right of the public or prevent its enjoyment, and the statute is therefore constitutional. Nor can the construction of the railway in accordance with these provisions be enjoined on the ground that it prevents the owner of the land from constructing a railway thereon for his own use. Phillips v. Watson, 63-28.

11 G. A., ch. 127, which provided for the establishment of private ways was held unconstitutional; but held, arguendo, that to afford an outlet to a citizen or access to mineral wealth, a public way might properly be established. Bankhead v. Brown, 25-540.

1950. Proceedings. 15 G. A., ch. 34, § 2. If the owner of any real estate, necessary to be taken for the purposes mentioned in this act, refuse to grant the right of way, or if such owner and the person, partnership, jointstock association, or corporation seeking to have such way established, cannot agree upon the compensation to be paid for the same, the sheriff of the county in which said real estate may be situated shall, upon the application of either party, appoint six disinterested freeholders of the county, not interested in a like question, who shall inspect said real estate, and assess the damage which said owner will sustain by the appropriation of said land for such public way, and make and report in writing to the sheriff of said county, and if the applicant for such public way shall at any time before entering upon said real estate, for the purpose of constructing such way, pay to said sheriff, for the use of said owner, the sum so assessed and returned to him as aforesaid, said highway may be at once constru[ct]ed and maintained over and across said premises.

1951. Provisions applicable. 15 G. A., ch. 34, § 3. In proceeding under this act, the application to the sheriff, the duty of commissioners, the time and manner of assessing the damages, the giving of notice thereof to residents and non-residents, the power of guardians to settle and convey, the making and returning of appraisement, the selection of talesmen, the payment of the costs of assessment, the report of the commissioners, the recording thereof, the right of appeal, the proceedings relating thereto, the result of non-user, the rights and duties as to other highways, are and shall be the same as provided in the sections of the code numbered twelve hundred and forty-five to and including twelve hundred and sixty-eight [§§ 19091936], and the provisions of all of said sections, so far as applicable, are declared to be a part of this act, except that the report of the commissioners, and record thereof, shall confer no title to the applicant for the land taken for the highway, but shall be presumptive evidence of the establishment of such way.

1952. Railway established. 15 G. A., ch. 34, § 4. Any owner, lessee, or possessor of lands having coal, stone, lead, or other mineral thereon, who has paid the damages assessed for highways established under this act, may construct, use, and maintain a railway on such way, for the purpose of

reaching and operating any quarry or mine on such land and of transporting the products thereof to market. In the giving of the notices required by this act, the applicant shall state whether a railway is to be constructed and maintained on the way sought to be established; and if it be so stated the jury shall consider that fact in the assessment of damages.

CONDEMNATION OF RIPARIAN RIGHTS.

1953. Erection of piers, cribs, etc. 15 G, A., ch. 35, §1. All owners and lessees of lands, or lots, situate upon the Iowa banks of the Mississippi and Missouri rivers, upon which property there is now, or may hereafter be, carried on any business which is in any way connected with the navigation of said rivers, or to which the said navigation is a proper or convenient adjunct, are hereby authorized to construct and maintain, in front of their said property, piers, cribs, booms, and other property and convenient erections and devices for the use of their respective pursuits and the protection and harbor of rafts, logs, floats and other water-crafts; provided, that the same present no material or unreasonable obstruction to the navigation of the stream, or to a similar use of adjoining property.

1954. Construction of railroad. 15 G. A., ch. 35, § 2. It shall not be lawful for any person or corporation to construct or operate any railroad or other obstruction between such lots or lands and either of said rivers, or upon the shore or margin thereof, unless the injury and damage to such owners occasioned thereby shall be first ascertained and compensated in the manner provided by chapter four, title ten of the code. [§§ 1904-1923.]

Whether § 1953 is in conflict with this act of congress (U. S. Rev. Stat., § 5254), relating to the construction of cribs, piers, etc., on the Mississippi river, quære. But even if it is, this section is not thereby rendered void. If a riparian owner is engaged in business connected with the navigation of the river it is not essential to his right to recover under this section that he should have erected a crib or pier in front of his property. The rule recognized in Tomlin v. Dubuque, B. & M. R. Co., 32-106, is no longer applicable, Revision, § 1328, being now repealed. Redwick v. Davenport & N. W. R. Co., 49-664; S. C., 102 U. S., 108.

ORGANIZATION AND GENERAL PROVISIONS.

1955. Change of name. 1273. Any corporation organized under the laws of this state for the purpose of constructing and operating a railway, may, with the assent of two-thirds of all the stock-holders in interest, change the corporate name thereof. But no change in the name of any such corporation shall be deemed complete until the president and secretary thereof shall file in the office of the secretary of state, a statement, under oath, showing the assent of stockholders to such change, and the new name adopted, and a certified copy of the proceeding had by the corporation and stockholders in relation thereto as the same appears in the records thereof; from the time of such filing, the corporation by its new name shall be entitled to all the rights, powers and franchises that it possessed under the old name, and by the new name shall be liable upon all contracts and obligations of every kind and description entered into by or binding upon such corporation by or under its old name to the same extent and manner as if no change in the name of that corporation had been made. [10 G. A., ch. 44, § 3, 4.]

1956. Record. 1274. The secretary of state shall immediately record in the proper book in his office the matters filed under the preceding section and make intelligible references to the record of the articles of incorporation as originally recorded.

1957. May join or consolidate. 1275. Any such corporation may join, intersect, and unite its railway with the railway of any other corporation at such point on the boundary line of this state as may be agreed upon by such corporations. And with the assent of three-fourths in interest of all the stockholders, may, by purchase or sale, or otherwise, merge and consolidate the stock, property, franchises, and liabilities of such corporations, making the same one joint-stock corporation upon such terms as may be agreed upon not in conflict with the laws of this state. [R., § 1332.]

A railroad corporation organized under the general law may, after constructing a line, sell the property and continue the object of its incorporation by the construction of a new line. Mahaska County R. Co. v. Des Moines Valley R. Co., 28-437.

Where the articles of incorporation of the company provided for the sale of the property with the limitation that "no sale shall be valid until all debts of the company shall be paid or arranged for," held, that the indebtedness being a very inconsiderable sum, if anything, and the purchaser having inquired if there were any debts, and being always ready to pay any that might be established, a sale under such circumstances was valid. Ibid.

Where a railway company through its directors sold its property to another company, and the directors and stockholders of the former stood by with knowledge of all the facts and saw the latter company make large expenditures on the property, held, that they were estopped from seeking a recovery of the property because of an irregularity in the sale. Ibid.

A company buying in the franchise of property of a railroad at a foreclosure sale does not become privy to any agreement on the part of the original company, except so far as it may be incorporated into the deeds of conveyance under which the title is held. Close v. C. R. & N. R. Co., 64-149.

Where two railroad companies were consolidated under the arrangement that stock in the new company should be issued to stockholders in the old companies, and the new company should acquire the property of the old, held that a stockholder in one of the old companies did not, by such transfer of property, acquire a vendor's lien thereon Cross v. Burlington S. & W. R. Co., 58-62.

1958. Connections. 1276. Any such corporation which has or may construct its railway so as to meet or connect with any other railway in an adjoining state at the boundary line of this state, shall have power to make such contracts and agreements with the corporations controlling such railways in an adjoining state, for the transportation of freight and passengers, or for the use of its railway by such foreign corporation, as the board of directors may see proper. [R., § 1334.]

1959. Extension. 1277. Any such corporation organized for the purpose of constructing a railway from a point within the state may construct or extend the same into or through any other state under such regulations as may be prescribed by the laws of such state; and the rights and privileges of such corporation over said extension in the construction and use thereof, and in controlling and applying the assets, shall be the same as if the railway was constructed wholly within this state. [R., § 1333.]

1960. Duties and liabilities of lessees. 1278. All the duties and liabilities imposed upon corporations owning or operating railways by this chapter, shall apply to all lessees or other persons owning or operating

such railways as fully as if they were expressly named herein, and any action which might be brought, or penalty enforced, against any such corporation by virtue of any provision of this chapter, may be brought or enforced against such lessees or other persons. [12 G. A., ch. 79; ch. 172, § 1.]

The obligation to fence (under § 1972) rests upon the lessee as much as upon the lessor, and the lessee is liable to damages done by its train, although as between it and the lessor the duty of fencing rests upon the latter. Clary v. Iowa Midland R. Co., 37-344.

Where the owner and a lessee each runs trains over the road, each is liable only for stock injured by its own trains by reason of the failure to fence. Stephens v. Davenport & St. P. R. Co., 36-327.

The remedy given against the lessees by statute is merely cumulative, and the right of action for negligence causing the injury of a passenger exists as against the company in whose name the road is being operated, although it may, in fact, have been leased to and be under the control of a lessee. Bower v. Burlington & S. W. R. Co., 42-546.

Prior to express statutory provision, held, that the statute imposing a liability for injuries to stock where the right of way is not fenced was applicable to a lessee, Liddle v. Keokuk, Mt. P. & M. R. Co., 23-378.

But further, held, under the same statutory provision, that where the lessee had the exclusive right to run, operate and control the road, and had built and maintained fences along the road and had the same power to protect itself that the lessor would have, it was liable for injury to stock to the same extent as though it were owner of the road. Stewart v. Chicago & N. W. R. Co., 27-282.

The company whose engines set out fire are liable for damages from the fire thus set out, although the road is owned and operated by another company and fire starts on the right of way by reason of combustible material allowed to accumulate thereon by such other company. Slossen v. Burlington, C. R. & N. R. Co., 60-215.

The

Where a railway company incorporated under the laws of Iowa, leases its road to a foreign corporation, the lessor is a necessary party to an action for breach by the lessee of a contract entered originally with the lessor. statutory provision as to the liability of a lessee does not discharge lessor from liability, but in effect makes both the lessor and lessee jointly liable. Chicago & N. W. R. Co. v. Crane, 113 U. S., 424.

A lessee of a railroad can exercise no right that its lessor could not, and if the lessor was subject to injunction against operating its road at the suit of the land owner whose property had been taken without compensation, the lessee is subject to the same restriction. Hibbs v. Chicago & N. W. R. Co., 39-340.

The company owning a railroad, and in whose name it is being operated, is liable in an action for personal injuries received thereon, although the road is leased and operated by a lessee. Bower v. Burlington & S. W. R. Co., 42-546.

Where a railroad was leased to defendant under a contract by which he was to manage the same and apply the profits, after payiug operating expenses, to the payment of certain advances made by him, etc., held, that he was a trustee and was not individually liable as lessee for operating expenses. United States Rolling Stock Co. v. Potter, 48-56.

A receiver operating a railway under direction of the court is liable to judgment for personal injuries received by an employee from the negligence of other employes engaged in the operation of the road, under the statutory provision on such subject. Sloan v. Central Iowa R. Co., 62–728.

For similar provisions, see § 1995.

1961. Offices. 1279. The offices of secretary and treasurer, or assistant treasurer or general superintendent of every railway corporation organized under the laws of this state, shall be kept where the principal place of business of such corporation is to be, in which offices the original record, stock and transfer books, and all the original papers and vouchers of such